VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_10-vv-00485
Package ID: USCOURTS-cofc-1_10-vv-00485
Petitioner: Sallyann Abbott
Filed: 2010-07-28
Decided: 2017-11-16
Vaccine: human papillomavirus and meningococcal
Vaccination date: 2007-08-17
Condition: syncopal seizure and post-vaccination encephalopathy
Outcome: compensated
Award amount USD: 80000

AI-assisted case summary:
Sallyann Abbott filed a petition on July 28, 2010, alleging that human papillomavirus and meningococcal vaccines she received on or about August 17, 2007 caused her to suffer a syncopal seizure and post-vaccination encephalopathy, with residual effects lasting more than six months.

A factual dispute arose during the proceedings regarding whether petitioner had experienced a seizure at her pediatrician's office after vaccination. Two of petitioner's medical experts had relied on this seizure as a predicate for their opinions. Special Master Moran ordered a fact hearing with testimony from office staff present at the time of the vaccination, but petitioner's counsel opposed the introduction of these witnesses. The special master found petitioner's opposition to be baseless, because percipient witness testimony was necessary to establish the foundational predicate for petitioner's experts' opinions.

On June 16, 2016, the parties filed a joint stipulation. Respondent denied that the vaccines caused petitioner's syncopal seizure, post-vaccination encephalopathy, or any other injury. Nevertheless, the parties agreed to resolve the case by stipulation, and Special Master Moran found the stipulation reasonable and adopted it as the decision of the Court. Petitioner received a lump sum of $80,000.00, representing compensation for all damages available under 42 U.S.C. § 300aa-15(a).

Petitioner applied for attorneys' fees and costs of $193,955.15. On April 26, 2017, Special Master Moran awarded $150,499.04, making reductions to hours billed by attorneys Christina Ciampolillo (30% reduction for vague billing entries and for the baseless opposition to the fact witness hearing) and Sylvia Chin-Caplan (10% reduction for vague billing entries), and adjusting certain expert witness rates. Petitioner was also awarded $400.16 in personally incurred costs.

Petitioner moved for review of the attorneys' fees decision. The Court of Federal Claims, Judge Wolski, issued a memorandum opinion on October 31, 2017, reissued for publication on November 16, 2017, denying the motion for review and sustaining the special master's decision. The court found that the special master had conducted a line-by-line analysis of the billing records, identified specific vague entries, and did not abuse his discretion in making the percentage reductions. The court also found that the special master's conclusion that petitioner's opposition to the fact hearing was without basis was not arbitrary or capricious.

Theory of causation field:
HPV + meningococcal vaccines Aug 17, 2007 → syncopal seizure + post-vaccination encephalopathy. Joint stipulation June 16, 2016; respondent denied causation; $80,000. SM Moran fees $150,499.04 (reduced from $193,955.15: vague billing + baseless opposition to fact hearing). CFC Wolski Nov 16, 2017: DENIED review, SUSTAINED. decision_date corrected: 2016-07-15 → 2017-11-16 (granule 3 date_issued; CFC fees review decision).

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_10-vv-00485-0
Date issued/filed: 2015-10-22
Pages: 13
Docket text: PUBLIC ORDER/RULING (Originally filed: 2/10/2015) regarding 158 Findings of Fact & Conclusions of Law. Signed by Special Master Christian J. Moran. (tpj) Copy to parties.
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Case 1:10-vv-00485-VJW Document 179 Filed 10/22/15 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * *
SALLYANN JOCKSBERGER, *
* No. 10-485V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: February 10, 2015
*
SECRETARY OF HEALTH * Findings of Fact; human
AND HUMAN SERVICES, * papillomavirus (“HPV”) vaccine;
* syncope; seizures.
Respondent. *
* * * * * * * * * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer et al., Boston, MA, for petitioner.
Althea W. Davis, United States Dep’t of Justice, Washington, DC, for respondent.
RULING FINDING FACTS1
Ms. Sallyann Jocksberger claims that the human papillomavirus (HPV)
vaccine she received on August 17, 2007, caused her to develop neurologic
problems. Petition at 1.2 She seeks compensation through the National Vaccine
Injury Compensation Program, 42 U.S.C. § 300aa-10 through 34 (2006).
The details about the way the HPV vaccine caused Ms. Jocksberger’s
problems, and what those specific problems are, have changed during the
litigation. See exhibit 92 (Statement of Dr. Kozachuk); order, issued Jan. 28, 2013.
A common denominator in the petitioner’s theory is that within minutes of
1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the
parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
2 The original petitioner was Ms. Jocksberger’s father, David Jocksberger. The caption
was later amended to designate Ms. Jocksberger as the petitioner as a result of her reaching the
age of majority. Order, issued Nov. 3, 2010.

Case 1:10-vv-00485-VJW Document 179 Filed 10/22/15 Page 2 of 13
receiving the vaccination, Ms. Jocksberger experienced some sort of seizure. The
Secretary, in contrast, maintains that what happened shortly after the vaccination
was an episode of syncope, more commonly known as fainting.
Because the parties differ in their assumptions about what happened in the
minutes immediately following the vaccination, a hearing was held to receive
testimony from percipient witnesses. Following this hearing, the parties proposed
findings of fact. This ruling finds facts based upon the preponderance of the
evidence standard.
Procedural History
The petition was filed on July 28, 2010. In support of this petition, Mr.
Jocksberger submitted medical records and affidavits (exhibits 1-23) followed by a
statement of completion on August 4, 2010.
On October 26, 2010, the Secretary filed her Rule 4 report arguing that
petitioner had not demonstrated an entitlement to compensation. In particular, the
Secretary’s report argued that Ms. Jocksberger’s contemporaneous medical records
did not corroborate her claim that she suffered a seizure following her August 17,
2007 HPV vaccination. Resp’t’s Rep, filed Oct. 26, 2010, at 17.
After several requests for extension, Ms. Jocksberger filed an expert report
from Dr. Walter E. Kozachuk (exhibit 32) on June 22, 2011. The Secretary filed
responsive expert reports from Dr. Michael Kohrman (exhibit A), Dr. Richard
Stiehm (exhibit C), and Dr. Edward Cetaruk (exhibit E) on October 25, 2011.
Responsive to the special master’s November 16, 2011 order, the Secretary filed a
supplemental report from Dr. Kohrman (exhibit G) on December 13, 2011. Ms.
Jocksberger responded with a report from Dr. Naresh Gupta (exhibit 35) on
February 29, 2012.
What happened immediately after the vaccination is a fundamental dispute
between the parties. See Resp’t’s Rep., filed Oct. 26, 2010, at 17. The parties’
experts have drawn different conclusions about Ms. Jocksberger’s condition
following the August 17, 2007 vaccination. Compare, on one hand, exhibit 32 (Dr.
Kozachuk’s Rep.) at 1, and exhibit 73 (Dr. Kozachuk’s Supp’l Rep.) at 2, with, on
the other hand, exhibit A (Dr. Kohrman’s Rep.) at 5, and exhibit C (Dr. Stiehm’s
Rep.) at 9.
2

Case 1:10-vv-00485-VJW Document 179 Filed 10/22/15 Page 3 of 13
The undersigned identified the syncope/seizure dispute in the first status
conference held after the case was reassigned to him. Order, issued Aug. 30, 2012
at 2, ¶7.b. Another issue discussed in that status conference was how the Secretary
would respond, if at all, to Ms. Jocksberger’s submission of a report from Gabriel
Newman, a neuropsychologist. Order, issued Aug. 30, 2012.
For a time, the issue involving the neuropsychological report took
prominence and the hearing set for March 2013 was cancelled. Order, issued Jan.
28, 2013. The Secretary requested that a neuropsychologist whom she retained,
Deborah Andersen, perform a neuropsychological assessment, including an
interview with Ms. Jocksberger. Resp’t’s Mot., filed Mar. 11, 2013. Ms.
Jocksberger opposed this request based, in part, on the report of Dr. Newman.
Pet’r’s Resp., filed Mar. 29, 2013.
After considering the arguments and evidence, the undersigned recognized
that an order granting or denying the Secretary’s motion for additional testing
would require a delicate balancing of different factors, including Ms. Jocksberger’s
health. Consequently, the undersigned proposed to defer this ruling. Instead, the
better approach would be to focus on how Ms. Jocksberger responded to the
vaccination. This emphasis is because Dr. Kozachuk’s assumption that Ms.
Jocksberger suffered a seizure appears to be essential to his opinion that the HPV
vaccine harmed Ms. Jocksberger. This proposal was discussed in a digitally
recorded status conference on April 11, 2013.
Ms. Jocksberger opposed the special master’s determining what happened
after vaccination. Ms. Jocksberger stated that expert testimony would be needed
but that neither she nor her mother would testify as percipient witnesses. Pet’r’s
Status Rep., filed May 13, 2013.
The Secretary, by contrast, supported a procedure in which Ms.
Jocksberger’s reaction would be determined as a preliminary matter. She, too, saw
the seizure/syncope issue as potentially dispositive. Resp’t’s Status Rep., filed
May 22, 2013. Another digitally recorded status conference was held on May 24,
2013. The result of these discussions was an order for the Secretary to file a
motion for a ruling on the record.
The Respondent filed this motion on June 24, 2013. Ms. Jocksberger filed
her opposition on July 16, 2013.
3

Case 1:10-vv-00485-VJW Document 179 Filed 10/22/15 Page 4 of 13
The undersigned determined that more information from percipient
witnesses would be helpful. See 42 U.S.C. § 300aa—12(d)(3)(B)(iii) (the special
master “may require the testimony of any person . . . as may be reasonable and
necessary”); Hanlon v. Secʼy of Health & Human Servs., 191 F.3d 1344, 1350
(Fed. Cir. 1999) (finding that special master did not abuse her discretion in calling
witness to testify). Five people appeared to have knowledge about how Ms.
Jocksberger behaved immediately after the vaccination. Two people were Ms.
Jocksberger and Ms. Jocksberger’s mother, Josephine Jocksberger. Three people
were employees of Brevard Pediatrics, the office where Ms. Jocksberger received
the vaccination, Deborah Sapp, Andrea Risberg, and Patty Marchio. Order, issued
Aug. 13, 2013. A third digitally recorded status conference was held on August
26, 2013. The ensuing order instructed the Secretary to contact the three witnesses
from Brevard Pediatrics. Order, issued Aug. 28, 2013.
In response to the plan to obtain more information from fact witnesses, Ms.
Jocksberger stated that her mother would testify, but she would not. Ms.
Jocksberger also refused to provide releases to authorize communications between
the Secretary’s attorney and the employees of Brevard Pediatrics. Pet’r’s Opp’n,
filed Sep. 4, 2013. This objection was overruled. Order, issued Dec. 13, 2013.
The Secretary located Ms. Sapp and Ms. Risberg, but could not locate Ms.
Marchio.
A hearing was held in Melbourne, Florida on March 20, 2014. Ms. Sapp,
Ms. Risberg, and Ms. Josephine Jocksberger testified as anticipated. In addition,
although Ms. Jocksberger had reported that she could not testify, Pet’r’s Status
Rep., filed Mar. 10, 2014, ultimately she also did testify. Unlike the other four
witnesses, Ms. Jocksberger testified in a conference room because Dr. Newman
recommended a less formal setting. Exhibit 97.3
Following this hearing, Ms. Jocksberger submitted a record from her
orthodontist. Exhibit 98. The parties submitted a Joint Proposed Findings of Fact
(“Proposed Findings”) on August 1, 2014. With this submission, the issue is ready
for adjudication.
3 Ms. Jocksberger's oral testimony was the first occasion to hear from her. She had not
submitted an affidavit before her testimony. Cf. 42 U.S.C. § 300aa−11(c)(1) (noting that a
petition shall contain an affidavit).
4

Case 1:10-vv-00485-VJW Document 179 Filed 10/22/15 Page 5 of 13
Standard for Finding Facts
Petitioners are required to establish their cases by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence
standard requires a “trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the judge of the fact’s existence.” Moberly v. Sec’y of
Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted).
The process for finding facts in the Vaccine Program begins with analyzing
the medical records, which are required to be filed with the petition. 42 U.S.C.
§ 300aa–11(c)(2). Medical records created contemporaneously with the events
they describe are presumed to be accurate. Cucuras v. Sec’y of Health & Human
Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
Not only are medical records presumed to be accurate, they are also
presumed to be complete, in the sense that the medical records present all the
problems of the patient. Completeness is presumed due to a series of propositions.
First, when people are ill, they see a medical professional. Second, when ill people
see a doctor, they report all of their problems to the doctor. Third, having heard
about the symptoms, the doctor records what he or she was told.
Appellate authorities have accepted the reasoning supporting a presumption
that medical records created contemporaneously with the events being described
are accurate and complete. A notable example is Cucuras, in which the petitioners
asserted that their daughter, Nicole, began having seizures within one day of
receiving a vaccination, although medical records created around that time
suggested that the seizures began at least one week after the vaccination. Cucuras,
993 F.3d at 1527. A judge reviewing the special master’s decision stated that “[i]n
light of [the parents’] concern for Nicole’s treatment . . . it strains reason to
conclude that petitioners would fail to accurately report the onset of their
daughter’s symptoms. It is equally unlikely that pediatric neurologists, who are
trained in taking medical histories concerning the onset of neurologically
significant symptoms, would consistently but erroneously report the onset of
seizures a week after they in fact occurred.” Cucuras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d 1525 (Fed. Cir. 1993).
5

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Decisions by judges of the Court of Federal Claims have followed Cucuras
in affirming findings by special masters that the lack of contemporaneously created
medical records can contradict a testimonial assertion that symptoms appeared on a
certain date. See, e.g., Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl.
598, 608 (2010) (stating, “[g]iven the inconsistencies between petitioner’s
testimony and his contemporaneous medical records, the special master’s decision
to rely on petitioner’s medical records was rational and consistent with applicable
law”), aff’d sub nom. Rickett v. Sec’y of Health & Human Servs., 468 Fed. Appx.
952 (Fed. Cir. 2011) (non-precedential opinion); Doe/17 v. Sec’y of Health &
Human Servs., 84 Fed. Cl. 691, 711 (2008); Ryman v. Sec’y of Health & Human
Servs., 65 Fed. Cl. 35, 41-42 (2005); Snyder v. Sec’y of Health & Human Servs.,
36 Fed. Cl. 461, 465 (1996) (stating, “[t]he special master apparently reasoned that,
if Frank suffered such [developmental] losses immediately following the
vaccination, it was more likely than not that this traumatic event, or his parents’
mention of it, would have been noted by at least one of the medical record
professionals who evaluated Frank during his life to date. Finding Frank’s medical
history silent on his loss of developmental milestones, the special master
questioned petitioner’s memory of the events, not her sincerity.”), aff’d, 117 F.3d
545, 547-48 (Fed. Cir. 1997).
The presumption that contemporaneously-created medical records are
accurate and complete is rebuttable, however. For cases alleging a condition found
in the Vaccine Injury Table, special masters may find when a first symptom
appeared, despite the lack of a notation in a contemporaneous medical record. 42
U.S.C. § 300aa-13(b)(2). By extension, special masters may engage in similar
fact-finding for cases alleging an off-Table injury. In such cases, special masters
are expected to consider whether medical records are accurate and complete. To
overcome the presumption that written records are accurate, testimony is required
to be “consistent, clear, cogent, and compelling.” Blutstein v. Sec’y of Health &
Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June
30, 1998).
Special masters will consider various explanations for inconsistencies
between contemporaneously created medical records and later given testimony.
The Court of Federal Claims listed four such explanations. Inconsistencies can be
explained by: (1) a person’s failure to recount to the medical professional
everything that happened during the relevant time period; (2) the medical
professional’s failure to document everything reported; (3) a person’s faulty
recollection of the events when presenting testimony; or (4) a person’s purposeful
recounting of symptoms that did not exist. La Londe v. Sec’y Health & Human
6

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Servs., 110 Fed. Cl. 184, 203 (Fed. Cl. 2013),aff’d, 746 F.3d 1334 (Fed. Cir.
2014).
In weighing divergent pieces of evidence, special masters usually find
contemporaneously-written medical records to be more significant than oral
testimony. Cucuras, 993 F.2d at 1528. Testimony offered after the events in
question is less reliable than contemporaneous reports when the motivation for
accurate explication of symptoms is more immediate. Reusser v. Sec’y of Health
& Human Servs., 28 Fed. Cl. 516, 523 (1993). However, compelling oral
testimony may be more persuasive than written records. Campbell, 69 Fed. Cl. at
779 (“[L]ike any norm based upon common sense and experience, this rule should
not be treated as an absolute and must yield where the factual predicates for its
application are weak or lacking.”); Camery v. Sec’y of Health & Human Servs., 42
Fed. Cl. 381, 391 (1998) (this rule “should not be applied inflexibly, because
medical records may be incomplete or inaccurate”); Murphy v. Sec’y of Health &
Human Servs., 23 Cl. Ct. 726, 733 (1991) (“[T]he absence of a reference to a
condition or circumstance is much less significant than a reference which negates
the existence of the condition or circumstance.”), aff’d, 968 F.2d 1226 (Fed. Cir.
1992).
The relative strength or weakness of the testimony of a fact witness affects
whether such testimony is more probative than medical records. An assessment of
a fact witness’s credibility may involve consideration of the person’s demeanor
while testifying. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379
(Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575
(Fed. Cir. 1993).
These criteria are considered in the analysis below.
General Assessment of Witnesses
Deborah Sapp
In 2007, Ms. Sapp was the administrator for Brevard Pediatrics, a job she
continued to perform in 2014 when she testified. Ms. Sapp has a certificate in risk
management. Tr. 13-14.
Before becoming an administrator, Ms. Sapp was a nurse. Tr. 13. In her
training and experience as a nurse, Ms. Sapp learned about syncope and seizures.
Tr. 18-21. Although Ms. Sapp has worked as a nurse, she explained that her
7

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present job is not as a nurse. For example, Ms. Sapp would not administer a
vaccine. Tr. 13.
In February 2009, Ms. Sapp wrote a letter for the petitioner’s attorneys,
which an attorney reviewed before it was sent. Ms. Sapp informed the petitioner’s
attorney that on August 17, 2007, she witnessed Ms. Jocksberger’s response to the
vaccination, and she told Ms. Jocksberger’s mother, on August 17, 2007, that Ms.
Jocksberger “had passed out.” Exhibit 4 at 105.
Ms. Sapp’s testimony was generally consistent with what she recorded five
years earlier. Ms. Sapp appeared credible. Her answers appeared spontaneous and
unrehearsed. She was forthcoming and recognized that she should have
documented the August 17, 2007 incident on August 17, 2007. Tr. 24.
Andrea Risberg
Ms. Risberg was and is a nurse practitioner. She obtained a master’s degree
of science in nursing from the Florida International University in 1998. She is
capable of diagnosing children’s illnesses and treating them, such as by prescribing
medications. Tr. 37-38.
On August 17, 2007, Ms. Risberg conducted a well-child exam on Ms.
Jocksberger. Exhibit 4 at 25; exhibit 25 at 1; Tr. 44. She directed Ms. Marchio to
give Ms. Jocksberger two vaccinations, a meningococcal vaccine and a human
papillomavirus vaccine. Ms. Risberg did not witness any events after vaccination.
However, she learned about them from Ms. Marchio. Tr. 44-45.
Ms. Risberg was credible. She was logical. She seemed to have a strong
grasp on important details.
Josephine Jocksberger
After graduating from high school, Ms. Josephine Jocksberger became a
cardiovascular technician based on education and training at the Midland Career
Institute. Tr. 98. While working at the Syosset Community Hospital, she was
trained as an electroencephalogram (“EEG”) technician. Tr. 99. As an EEG
technician, she placed electrodes on the head of patients. Tr. 71, 99. A neurologist
instructed the patient during the EEG. Tr. 102-03. On occasion, the neurologist
directed Ms. Jocksberger to attempt to stimulate a seizure using light. Tr. 60, 73-
74, 103. She witnessed numerous people having seizures. Tr. 73-74. She did not
8

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recall how the neurologist responded to the seizures. Tr. 75. Ms. Jocksberger
stopped working as an EEG technician in 1989. Tr. 71.
Ms. Jocksberger brought her daughter to the appointment on August 17,
2007, and stayed with her. Tr. 76. Ms. Jocksberger was present for the
vaccination and its aftermath. Tr. 81-87. Her opinion is that her daughter had a
seizure. Exhibit 95; Tr. 82. After Ms. Jocksberger and her daughter left the
doctor’s office, they went home. Tr. 87. She did not bring her daughter to the
hospital, although a hospital is near the doctor’s office. Tr. 42 (location of
hospital).
Ms. Jocksberger was not credible. Her responses appeared coached and she
was hostile to answering questions from the Secretary’s attorney. Much of her
testimony was not believable. For example, her testimony that she did not use
terms like “grand mal seizure,” when describing her daughter’s history, seems
particularly implausible, in view of the medical records in which that phrase
appears attributed to her.
Sally Jocksberger
She is the petitioner. In accord with suggestions from Dr. Newman, she was
not questioned extensively. See exhibit 96. She testified that after receiving the
vaccination, she shut down. Her testimony was credible, just limited in scope. Tr.
120-31.
Findings of Fact
Ms. Jocksberger did not have seizures before August 17, 2007. On the other
hand, Ms. Jocksberger had experienced fainting and syncope before August 17,
2007. Proposed Findings, at 2-3.4
On August 17, 2007, Ms. Risberg saw Ms. Jocksberger. Tr. 44. During this
appointment, Ms. Jocksberger’s mother said “she’s a fainter.” Ms. Risberg
directed Ms. Marchio to stay with petitioner. Tr. 44-46.5
4 Although these facts are not disputed, Ms. Jocksberger interposed a needless objection.
5 Given the records showing that Ms. Jocksberger fainted before August 17, 2007, Ms.
Josephine Jocksberger’s testimony that she would not have described her daughter was a fainter
is not credible. Tr. 76.
9

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Ms. Marchio injected the meningococcal vaccine. Tr. 61-62, 121. Nothing
unusual happened. Before Ms. Marchio injected the second vaccine, the one for
human papillomavirus, Ms. Josephine Jocksberger called her husband, who is a
pharmacist. Ms. Josephine Jocksberger was concerned about the safety of this
vaccine. Her husband told her that he did not have any information about this
vaccine and Ms. Marchio said that the vaccine was required for school.
Consequently, Ms. Josephine Jocksberger consented to the injection of the HPV
vaccine. Tr. 80.
Ms. Marchio injected the vaccine. Ms. Jocksberger was seated at the time of
vaccination. Tr. 81, 122.
Ms. Jocksberger started to feel weird and very strange. She started to feel
herself shutting down. Everything went black, and she lost her hearing. Tr. 121-
22, 124-25 (Ms. Jocksberger’s testimony); see also Tr. 81 (Ms. Josephine
Jocksberger’s testimony about what her daughter told her). She slumped forward
in her chair, but did not fall from it. Ms. Marchio left the room briefly to get a
glass of water. Tr. 62-64.
Ms. Sapp entered the room.6 Ms. Sapp and Ms. Marchio lowered Ms.
Jocksberger to the floor from the chair. Tr. 31. She was pale. Exhibit 4 at 105, Tr.
46 (Ms. Risberg’s testimony that Ms. Marchio said Ms. Jocksberger turned white).
Ms. Jocksberger did not have urinary incontinence or lose control of her
bowels. Exhibit 4 at 105 (Ms. Sapp’s letter); see also Tr. 26 (Ms. Sapp’s
testimony), 86 (Ms. Josephine Jocksberger’s testimony).7 Ms. Jocksberger did not
jerk or thrash her arms around.8
6 Ms. Sapp testified some event brought her into the room. Tr. 22-23. It is unlikely that
Ms. Sapp was present for the actual vaccination because giving vaccinations was not part of her
duties in 2007. Tr. 13, 32. It is likely that Ms. Jocksberger's movement forward either directly
prompted Ms. Sapp to enter the room to lend a hand because Ms. Sapp saw Ms. Jocksberger
move or indirectly prompted Ms. Sapp to assist because either Ms. Marchio or Ms. Jocksberger's
mother yelled "help" after Ms. Jocksberger slumped forward.
7 Both Ms. Sapp and Ms. Risberg stated that seizures often produce a loss of bladder
control. Tr. 20, 50-51.
8 Whether Ms. Jocksberger thrashed is probably the most disputed issue. Her mother
insisted that Ms. Jocksberger thrashed. Exhibit 95; Tr. 62; but see Tr. 85 (Ms. Josephine
(…continued)
10

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Ms. Jocksberger lost consciousness for about one minute. Exhibit 4 at 105;
Tr. 32-34 (Ms. Sapp’s testimony), 47 (Ms. Risberg’s testimony about Ms.
Marchio’s account to her), 64 (Ms. Josephine Jocksberger’s testimony that
everything happened quickly). When she woke up, Ms. Sapp and Ms. Marchio
helped her back to her chair. Tr. 23-24, 64, 123. Ms. Jocksberger felt achy and
sore all over. Tr. 27, 123. She was confused. Tr. 123. She also had a headache.
Tr. 65, 87.
Despite the foregoing, Ms. Jocksberger walked out of her pediatrician’s
office on her own. Tr. 65. Neither Ms. Jocksberger nor her mother asked to see
Ms. Risberg as they were leaving. See Tr. 49. Ms. Jocksberger and her mother
went home. They did not go to an emergency room because, according to Ms.
Josephine Jocksberger, the medical professionals said that Ms. Jocksberger would
be ok. Tr. 87.
Ms. Jocksberger’s next appointment with a doctor was slightly more than
two months later on October 29, 2007. Ms. Jocksberger returned to her
Jocksberger could not recall details about movements). Ms. Josephine Jocksberger’s testimony
is not credible because of the surrounding circumstantial evidence.
Ms. Marchio did not recognize Ms. Jocksberger’s movements as consistent with a
seizure. Ms. Marchio was familiar with seizures from her training as a medical assistant and
from having a mother with epilepsy. Tr. 56; cf. 17 (medical assistants are not nurses).
Similarly, Ms. Sapp, the other Brevard Pediatrics employee with experience in
recognizing seizures and who witnessed at least some of Ms. Jocksberger’s behavior, did not see
evidence of a seizure. Ms. Sapp would have acted differently for a seizure, such as calling a
doctor or 911. Ms. Sapp told Ms. Josephine Jocksberger that Ms. Jocksberger was not having a
seizure. Tr. 26. Likewise, if Ms. Risberg had learned one of her patients had a seizure, Ms.
Risberg would have checked the patient’s blood pressure at a minimum. Tr. 48, 51.
Petitioner’s expert, Dr. Kozachuk, emphasizes Ms. Josephine Jocksberger's training as an
EEG technician to establish her ability to recognize a seizure. Exhibit 73 at 2, 6. However, there
are two problems. First, Ms. Josephine Jocksberger downplayed her knowledge of seizures. Tr.
74, 90, 99. Second, if Ms. Josephine Jocksberger had recognized her daughter’s behavior as a
seizure, her background would inform her to seek additional medical attention. The obvious
starting place was with the doctors in the office. If Ms. Josephine Jocksberger were not satisfied,
she could have brought her daughter to the nearby emergency room. Another option was to call
for emergency assistance via 911. Alternatively, Ms. Josephine Jocksberger could have sought
care over the weekend or during the following week. Tr. 107.
But, Ms. Jocksberger's mother did none of those things. Her actions and inactions on
August 17, 2007, are not consistent with the behavior of a person who witnessed her child
thrashing around on the floor. These actions and inactions are more consistent with the behavior
of a person who saw a relatively transient event.
11

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pediatrician’s office complaining about headaches, among other problems. The
record from this visit does not indicate when the headaches started. Exhibit 4 at
12-13. The record also does not mention any behavior resembling seizures (or
syncope) on August 17, 2007. Id.
In subsequent appointments with Ms. Jocksberger, doctors recorded a
history of “grand mal seizure” or “generalized tonic clonic seizure.” Exhibit 6 at 4;
exhibit 12 at 1. From reading the record, however, it appeared that Ms. Josephine
Jocksberger was the source of these histories. See exhibit 4 at 51, 100; see also Tr.
70 (Ms. Josephine Jocksberger: “I speak for Sally”). Dr. Kennedy submitted a
report to Merck stating that “mother reported generalized seizure movement”
following petitioner’s August 17, 2007 vaccinations.9 Exhibit 4 at 100; Tr. 52-54.
Yet, when presented with these specific records, Ms. Josephine Jocksberger denied
knowing from where the terms came. Tr. 93, 105, 107-10. In the circumstance in
which a doctor did not diagnose Ms. Jocksberger as suffering a seizure near
August 17, 2007, an unidentified person’s assertion that she had a seizure does not
establish, in fact, that Ms. Jocksberger had a seizure.
Next Steps / Conclusion
Whether Ms. Jocksberger’s behavior on August 17, 2007, constituted a
seizure, syncope, or syncopal seizure depends ultimately upon expert opinion. See
Knudsen v. Sec'y of Health & Human Servs., 35 F.3d 543, 549 (Fed. Cir. 1994)
(“special masters are not ‘diagnosing’ vaccine-related injuries”); Schneider v.
Sec'y of Health & Human Servs., No. 99-160V, 2005 WL 318697, at *2 (Fed. Cl.
Spec. Mstr. Feb. 1, 2005) (citing cases about on-Table injuries), mot. for rev.
denied, 64 Fed. Cl. 742, 746 (2005).
The parties ARE ORDERED to provide this ruling to the experts they have
retained, so that these experts may prepare supplemental reports, opining whether
Ms. Jocksberger suffered a seizure.10 A status conference will be held on March 4,
9 Mr. Jocksberger, who is a pharmacist (Tr. 80), submitted information to the Vaccine
Adverse Event Reporting System (“VAERS”) in November 2007. Mr. Jocksberger stated that
his daughter had a “grand mal seizure” following vaccination. Exhibit 26.
10 The experts must render an opinion based upon the behavior found in this ruling. An
expert’s assumption about the accuracy of a witness’s account does not corroborate a witness’s
account. Bradley v. Sec'y of Health & Human Servs., 991 F.2d 1570, 1574 (Fed. Cir. 1993).
Similarly, a special master may reject the conclusion reached by a treating physician when that
(…continued)
12

Case 1:10-vv-00485-VJW Document 179 Filed 10/22/15 Page 13 of 13
2015 at 3:00 PM. The petitioner should be prepared to estimate the date by which
Dr. Kozachuk will provide a supplemental report. Similarly, the Secretary will
also be asked to provide a date by which Dr. Kohrman and Dr. Stiehm will provide
supplemental reports.
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6353.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
conclusion is based upon an inaccurate history. Dobrydnev v. Sec'y of Health & Human Servs.,
566 Fed. Appx. 976, 982 (Fed. Cir. 2014), reh’g denied, (Aug, 20, 2014), petition for cert. filed,
2015 WL 254864 (U.S. Jan. 16, 2015)(No. 14-868).
13

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_10-vv-00485-1
Date issued/filed: 2016-07-15
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 6/20/16) regarding 197 DECISION Stipulation/Proffer. Signed by Special Master Christian J. Moran. (dh) Copy to parties.
--------------------------------------------------------------------------------
Case 1:10-vv-00485-VJW Document 201 Filed 07/15/16 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * * * *
SALLYANN ABBOTT, * No. 10-485V
* Special Master Christian J. Moran
Petitioner, *
*
v. * Filed: June 20, 2016
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Stipulation; Human Papillomavirus
* and meningococcal vaccines;
* syncopal seizure and post-vaccination
Respondent. * encephalopathy
*
* * * * * * * * * * * * * * * * * * * * * *
Ronald Craig Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for
Petitioner;
Althea Walker Davis, U.S. Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION1
On June 16, 2016, the parties filed a joint stipulation concerning the petition
for compensation filed by Sallyann Abbott on July 28, 2010. In her petition,
petitioner alleged that the human papillomavirus and menigococcal vaccines,
which are contained in the Vaccine Injury Table (the “Table”), 42 C.F.R.
§100.3(a), and which Sallyann Abbott received on or about August 17, 2007,
caused her to suffer a syncopal seizure and post-vaccination encephalopathy, with
residual effects lasting more than six months. Petitioner represents that there has
been no prior award or settlement of a civil action for damages on her behalf as a
result of her condition.
1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.

Case 1:10-vv-00485-VJW Document 201 Filed 07/15/16 Page 2 of 8
Respondent denies that any of the vaccines that petitioner received either
caused her to suffer a syncopal seizure and a post-vaccination encephalopathy, any
other injury, or her current condition.
Nevertheless, the parties agree to the joint stipulation, attached hereto as
Appendix A. The undersigned finds said stipulation reasonable and adopts it as the
decision of the Court in awarding damages, on the terms set forth therein.
Damages awarded in that stipulation include:
A lump sum payment of $80,000.00 in the form of a check payable to
petitioner, Sallyann Abbott. This amount represents compensation for
all damages that would be available under 42 U.S.C. § 300aa-15(a).
In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 10-485V according to this decision
and the attached stipulation.2
Any questions may be directed to my law clerk, Dan Hoffman, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
2

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================================================================================
DOCUMENT 3: USCOURTS-cofc-1_10-vv-00485-3
Date issued/filed: 2017-11-16
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 10/31/2017) regarding 219 Order on Motion for Review, Judge Vaccine Order/Opinion Signed by Judge Victor J. Wolski. (jp) Copy to parties.
--------------------------------------------------------------------------------
Case 1:10-vv-00485-VJW Document 221 Filed 11/16/17 Page 1 of 9
In the United States Court of Federal Claims
No. 10-485V
(Filed under seal October 31, 2017)
(Reissued November 16, 2017)†
* * * * * * * * * * * * * * * * * * * * * * * *
*
SALLYANN ABBOTT, * National Vaccine Injury
* Compensation Program; attorneys’
Petitioner, * fees, 42 U.S.C. § 300aa-15(e)(1);
* percentage reduction of hours;
v. * baseless litigation position; vague
* billing entries.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * *
Ronald C. Homer & Christina Ciampolillo, Conway Homer P.C., Boston, MA,
for the petitioner.
Althea Walker Davis, Senior Trial Counsel, Torts Branch, Civil Division,
Department of Justice, with whom were Chad A. Readler, Acting Assistant Attorney
General, C. Salvatore D’Alessio, Acting Director, Catharine E. Reeves, Deputy
Director, and Alexis B. Babcock, Assistant Director, all of Washington, D.C., for the
respondent.
MEMORANDUM OPINION AND ORDER
WOLSKI, Judge.
Petitioner Sallyann Abbott has moved for review, pursuant to 42 U.S.C.
§ 300aa-12(e), of a special master’s decision denying a portion of the attorneys’ fees
and costs for which she had applied. She contends that the Special Master acted
arbitrarily in making percentage reductions to the hours billed by her two principal
attorneys. But after reviewing the briefs of the parties and hearing oral argument
† Pursuant to Vaccine Rule 18(b) of the Rules of the United States Court of Federal
Claims, this opinion was initially filed under seal, to allow the parties to request
redactions. None having been requested, the opinion is now reissued for publication
with some minor, non-substantive corrections.

Case 1:10-vv-00485-VJW Document 221 Filed 11/16/17 Page 2 of 9
on this matter, the Court concludes that the Special Master reasonably acted within
his discretion in reducing the attorneys’ fees award. For the reasons that follow,
petitioner’s motion for review is DENIED and the Special Master’s decision is
SUSTAINED.
I. BACKGROUND
In 2007, Mrs. Abbott received a human papillomavirus vaccine, which she
contends caused her to suffer from neurological problems. Abbott v. Sec’y of Health
& Human Servs., No. 10-485V, 2017 WL 2226614, at *1 (Fed. Cl. Apr. 26, 2017).
After several years of litigation, Mrs. Abbott received a settlement of $80,000 and
filed a motion for attorneys’ fees and costs, requesting an award of $193,955.15. Id.
at *1, *5. Special Master Christian J. Moran made several reductions in fees based
on the vagueness of billing records, the superfluity of tasks, the baselessness of a
litigation position, and because tasks billed to paralegals were clerical or secretarial
in nature.1 Id. at *6–8. Petitioner ultimately was awarded $150,499.04 in fees and
costs. Id. at *11.
The bulk of the fees reduction was due to the disallowance of a percentage of
the hours billed by two attorneys.2 The Special Master made a 30% reduction to the
hours of one attorney, Christina Ciampolillo, and a 10% reduction to the hours of a
second attorney, Sylvia Chin-Caplan.3 Id. at *6–8. The “primary reason” given for
the Ciampolillo reduction was that the Special Master found that “her billing
records are too vague to demonstrate the reasonableness of her work.” Abbott, 2017
WL 2226614, at *8. The Special Master explained that he “conducted a line-by-line
analysis of all the entries documented in the timesheets” submitted by petitioner’s
counsel. Id. at *6. He found “Ms. Ciampolillo’s descriptions of her work” to be
1 Petitioner’s request of $36,228.79 in attorneys’ costs was reduced to $25,421.29,
as the Special Master made adjustments to the hourly rates of two expert
witnesses. Abbott, 2017 WL 2226614, at *8–11. Additionally, Ms. Abbott was
awarded $400.16 for her personally incurred costs. Id. at *11. The costs portion of
the award has not been challenged.
2 The reductions made to work billed by other attorneys or paralegals, see Abbott,
2017 WL 2226614, at *6, *8, are not challenged in petitioner’s motion for review.
3 These attorneys were the ones primarily responsible for representing petitioner,
as Ms. Ciampolillo and Ms. Chin-Caplan respectively represented 49.7% and 23.5%
of the total fees requested by petitioner. See Pet’r’s Appl. for Attorneys’ Fees and
Costs at 88, ECF No. 202.
-2-

Case 1:10-vv-00485-VJW Document 221 Filed 11/16/17 Page 3 of 9
“consistently nonspecific,” providing examples “such as ‘DRAFT email to expert,’ or
‘PHONE CALL with expert.’” Id. at *7. He faulted her for not providing the name
of the particular expert, of several, with whom she had communicated, or “some
information about the topic or purpose of the communication.” Id.
The “secondary reason” for the Ciampolillo reduction was due to her efforts
resisting a fact hearing the Special Master held to determine whether petitioner
suffered a seizure at her pediatrician’s office after receiving the vaccination. Abbott,
2017 WL 2226614, at *4, *7–8. Although two of petitioner’s experts assumed that
such a seizure occurred, petitioner’s initial plan was not to have her mother or
herself testify as to the event, but to rely on medical records “created much later”
that contained their recounts of petitioner’s medical history. Id. at *3.4 The Special
Master determined that testimony from percipient witnesses would be useful to
determine how Mrs. Abbott reacted in her pediatrician’s office after the vaccination,
but petitioner opposed the introduction of these witnesses and refused to authorize
communications to facilitate their testimony. Id. at *4.5 The Special Master
determined that this position was unreasonable and “without any basis,” and
therefore did not allow petitioner’s counsel to be compensated for these activities.
Id. at *7.
The reductions to Ms. Chin-Caplan’s billed hours were made because the
Special Master found “many entries” to be “vague.” Id. at *6. Several merely read
“Review file,” and entries for meetings “do not identify the purpose or the topic of
the meeting.” Id. The Special Master concluded that “[t]he vagueness of these
entries does not provide sufficient information to establish the reasonableness of the
activity,” and on that basis reduced the hours billed by ten percent. Id.
Petitioner has timely moved for review of the Special Master’s decision,
arguing that a portion of the reductions based on vagueness and baselessness were
arbitrary and capricious and resulted from an abuse of discretion. See Pet’r’s Mem.
Supp. Mot. for Review at 12–33, ECF No. 213 (Pet’r’s Br.). The Secretary of Health
4 Initially, the allegation of this seizure was not based on witness testimony, but on
the affidavit of petitioner’s father, who stated that his wife said the seizure
occurred. Abbott, 2017 WL 2226614, at *1. After the Special Master proposed a
hearing on the subject, see Order (Apr. 11, 2013) at 2–3, ECF No. 109, petitioner’s
mother submitted her own affidavit, see Pet’r’s Ex. 95, Aff. of Josephine
Jocksberger, ECF No. 121-1.
5 This proceeding resulted in the issuance of a Ruling Finding Facts. Jocksberger v.
Sec’y of Health & Human Servs., No. 10-485V, 2015 WL 6291671 (Feb. 10, 2015).
-3-

Case 1:10-vv-00485-VJW Document 221 Filed 11/16/17 Page 4 of 9
and Human Services has responded, arguing that the Special Master appropriately
determined the amount of attorneys’ fees awardable to petitioner. See Resp’t’s
Mem. Resp. to Mot. for Review at 6–13, ECF No. 215 (Resp’t’s Br.). On October 4,
2017, the Court held oral argument on the motion.
II. DISCUSSION
A. Legal Standards
Under the National Vaccine Injury Compensation Program, 42 U.S.C.
§§ 300aa-10 to 300aa-34 (“Vaccine Act”), whenever a petitioner is awarded
compensation the special master “shall also award . . . an amount to cover . . .
reasonable attorneys’ fees, and . . . other costs.” 42 U.S.C. § 300aa-15(e)(1). The
Vaccine Act provides for review of a special master's decision, wherein the court
may “set aside any findings of fact or conclusion of law of the special master found
to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law and issue its own findings of fact and conclusions of law.” 42 U.S.C. §
300aa-12(e)(2)(B).
The Federal Circuit has held that awards of attorneys’ fees are to be reviewed
under the abuse-of-discretion standard. Hall v. Sec’y of Health & Human Servs.,
640 F.3d 1351, 1356 (Fed. Cir. 2011) (citing Pierce v. Underwood, 487 U.S. 552,
558–63 (1988); Saxton ex rel. Saxton v. Sec’y of Health & Human Servs., 3 F.3d
1517, 1520 (Fed. Cir. 1993)). Under this standard, “only if [a tribunal] erred in
interpreting the law or exercised its judgment on clearly erroneous findings of
material fact, or its decision represents an irrational judgment in weighing the
relevant factors can its decision be overturned.” Chiu v. United States, 948 F.2d
711, 713 (Fed. Cir. 1991) (reviewing a non-vaccine decision to award attorneys’ fees
under the Equal Access to Justice Act). In general, “reversible error is ‘extremely
difficult to demonstrate’ if the special master ‘has considered the relevant evidence
of record, drawn plausible inferences and articulated a rational basis for the
decision.’” Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir.
2000) (quoting Hines ex. Rel. Sevier v. Sec’y of Health & Human Servs., 940 F.2d
1518, 1528 (Fed. Cir. 1991)).
B. Analysis
In calculating an award of reasonable attorneys’ fees, the Special Master
reduced the hours billed by two of petitioner’s attorneys. One, Ms. Ciampolillo,
billed 355.8 hours for a total fee of $78,222.60. See Pet’r’s Appl. for Attorneys’ Fees
and Costs at 88. This amount was reduced by 30%, down to $54,755.82. See Abbott,
2017 WL 2226614, at *8. The other, Ms. Chin-Caplan, billed a total of 107.8 hours
-4-

Case 1:10-vv-00485-VJW Document 221 Filed 11/16/17 Page 5 of 9
for a total fee of $36,924.80. See Pet’r’s Appl. at 88. This request was reduced by
10%, down to $33,232.32. See Abbott, 2017 WL 2226614, at *6.
Petitioner raises two objections to the Special Master’s decision. First, she
argues that her attorneys acted appropriately in opposing a hearing that excluded
medical expert testimony, and that the Special Master arbitrarily penalized them
for zealously advancing her interests. Pet’r’s Br. at 12–18. Second, she argues that
it was arbitrary for the Special Master to reduce billed hours based on the
vagueness of billing entries, contending that the entries were sufficiently detailed;
that the Special Master did not adequately quantify these reductions; and that
providing more detail concerning the subject matter of tasks could implicate the
attorney-client privilege or the work-product doctrine. Id. at 18–33.
1. Fact Witness Testimony
In objecting to the reduction for hours spent opposing the hearing concerning
whether she suffered a seizure at her pediatrician’s office, petitioner offers a
number of justifications for her attorneys’ efforts. Petitioner argues that she did not
want a hearing that did not also include medical expert testimony. Pet’r’s Br. at 13.
She explains that she did not wish to call the employees of that office as her
witnesses because she suspected that their recollections would differ from those of
her own fact witnesses and she needed therefore to cross-examine them. Id. at 13–
14. Despite the narrow topic of the proceeding, petitioner did not want to authorize
these employees of one of her health providers to speak with the Secretary’s
lawyers, because she did not want the latter to have “unfettered access” to the
former. Id. at 13.
Petitioner further maintains that the Special Master improperly penalized
her counsel for zealous representation, when the Massachusetts Rules of
Professional Conduct require such behavior. Id. at 15 (citing MASS. R. PROF. C.
Preamble & Rule 1.3). And she argues that the Special Master interfered with her
attorneys’ ability to pursue their own legal strategy. Id. at 16. This, she contends,
violates the “full and fair opportunity to present its case” guaranteed each party
under Vaccine Rule 3(b)(2), and the “principles of fundamental fairness” that are
required by Vaccine Rule 8(b)(1). Id.
The Court is not persuaded that the Special Master abused his discretion in
reducing petitioner’s fees by the hours spent opposing the testimony of the
employees of petitioner’s pediatrician’s office. As the Secretary has pointed out, see
Resp’t’s Br. at 7, under Vaccine Rule 8(c)(1) the Special Master had the discretion to
“conduct an evidentiary hearing to provide for the questioning of witnesses,” and
-5-

Case 1:10-vv-00485-VJW Document 221 Filed 11/16/17 Page 6 of 9
the “fundamental fairness” concept of Vaccine Rule 8(b)(1) “requires a search for the
truth,” Boley v. Sec’y of Health & Human Servs., 82 Fed. Cl. 407, 413 (2008)
(citations omitted). The Special Master explained that “the foundational predicate”
for the opinions of petitioner’s critical medical experts was “that she suffered a
seizure after vaccination.” Abbott, 2017 WL 2226614, at *3. Petitioners’ counsel
may have zealously sought to limit the evidence of this seizure to the intake
histories she recounted to medical providers much after the fact, but such self-
reported histories can have low probative value. See Langland v. Sec’y of Health &
Human Servs., 109 Fed. Cl. 421, 439–440 (2013) (noting the evidentiary problems of
patient histories related to subsequent medical professionals by patients or their
parents). The Special Master was, essentially, telegraphing to petitioner that he
would have trouble finding the existence of this necessary predicate on the basis of
such evidence, or on the affidavit from petitioner’s father stating that his wife had
told him that petitioner suffered a seizure. See Abbott, 2017 WL 2226614, at *1.
Under these circumstances, it was entirely appropriate for the Special Master
to seek testimony from office staff present the day of the vaccination, in order to
“search for the truth.” Boley, 82 Fed. Cl. at 413. Special masters may use their
prior experience in making fees determinations. See Saxton, 3 F.3d at 1521. And
as the person who was “intimately familiar with all the facts before” him, Hall, 640
F.3d at 1356, the Special Master was in the best position to determine whether
petitioner’s counsel’s efforts to resist the fact hearing were baseless and not
reasonably compensable. Accordingly, the finding that the attorneys’ fee award
should not cover these hours cannot be set aside as an abuse of discretion.
2. Vague Billing Entries
The “primary reason” for the reduction in compensable hours billed by Ms.
Ciampolillo, and the sole reason for the reduction concerning Ms. Chin-Caplan, was
that the Special Master found many of their time entries to be too vague. Abbott,
2017 WL 2226614, at *6–8. Petitioner’s chief argument against these reductions is
that her counsel has submitted similar entries many times in the past without any
reductions being made. Pet’r’s Br. at 18–20. Petitioner’s counsel’s firm “has
practiced exclusively in the Vaccine Program for decades and represented
thousands of petitioners. Attorneys’ fees at [petitioner’s counsel’s firm] have never
been reduced due to vague billing entries.” Id. at 18. Petitioner argues that
because no change has been made to the billing practices, the Special Master’s
sudden decision that her entries are “too vague” is arbitrary and capricious and
should be reversed. Id.
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Petitioner relies on Guerrero v. Sec’y of Health and Human Servs., where our
court found that a special master had inadequately explained the reasons for his
deductions, and required him to explain how he calculated his percentage reduction
in attorney hours. Pet’r’s Br. at 20–21 (citing Guerrero, 120 Fed. Cl. 474, 480–481
(Fed. Cl. 2015)). In that case, our court recognized that “decisions employing
percentage reductions [should receive] ‘heightened scrutiny,’” adding that there
must be a “‘concise but clear’ explanation for reducing a fee award so that an
appellate tribunal is able to assess whether there has been an abuse of discretion.”
Guerrero at 481 (quoting Int’l Rectifier Corp. v. Sumsung Elecs. Co., 424 F.3d 1235,
1239 (Fed. Cir. 2005)). The problem there was that “[t]he Special Master did not
identify any of the referenced ‘multitude of tasks’ or ‘small incremental charges,’
cite any instance of overbilling, or identify a time period when billing levels were
inappropriate.” Id. But in contrast, here the Special Master has identified a
number of specific instances of vague entries, including specific citations to
petitioner’s fee application. See Abbott, 2017 WL 2226614, at *6–7. Furthermore,
unlike in Guerrero, here the Special Master made a line-by-line analysis of the
timesheets submitted by petitioner. See id. at *6. It would be unreasonable,
however, to expect the Special Master to explain how each individual entry affected
his final calculation, as in conducting fee determinations tribunals “need not, and
indeed should not, become green-eyeshade accountants.” Fox, 563 U.S. at 838.6
Petitioner further argues that the Special Master’s decision to reduce the fee
award based on vague billing entries was arbitrary and capricious because the
billing entries in question fully complied with the Guidelines for Practice under the
National Vaccine Injury Compensation Program (NVICP). Pet’r’s Br. at 22 (quoting
Guidelines for Practice under the NVICP § X, Chapter 1(A) (Rev. Apr. 2016)).
Petitioner is mistaken to understand this language to be setting any sort of
standard for specificity in billing entries, however. These guidelines merely explain
the structure of attorney payment under the Vaccine Act --- they do not set
minimum standards for fee awards.
6 With the burden of establishing the reasonableness of an attorneys’ fee request
falling on petitioner’s attorneys, if anyone should assume the role of “green-
eyeshade accountants” it is they. But petitioner has failed to present in her motion
for review her own estimate of the percentage of billing entries of Ms. Ciampolillo or
Ms. Chin-Caplin which are of the sort the Special Master found impermissibly
vague.
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Much of Mrs. Abbott’s concern with the Special Master’s requirement of more
specificity in billing records is that providing the topic of communications between
attorneys and their clients or their expert witnesses could violate attorney-client
privilege or divulge information protected by the work-product doctrine. Pet’r’s Br.
at 24–30. But in the context of a fee application under the Equal Access to Justice
Act, the Federal Circuit held that the disclosure of general subject matter for billing
entries could be done in a manner that did not violate the attorney-client privilege.
Avgoustis v. Shinseki, 639 F.3d 1340, 1343–46 (Fed. Cir. 2011)). That case involved
a reduction in compensable attorneys’ hours due to billing entries strikingly similar
to those found problematic by the Special Master, such as “‘review[ed] client
correspondence’ or ‘draft[ed] client correspondence.’” Id. at 1341. Petitioner has
explained that the billing entry software used by her counsel maintains two sets of
records, one for public consumption and the other containing internal
communications regarding the entries. Pet’r’s Br. at 24 n.23, 29 n.26. In future fee
applications, it should not be difficult to supplement any vague entries with
additional information from the latter, appropriately redacted to protect work-
product and preserve privileged information.
Petitioner also argues that the missing information from billing entries found
vague by the Special Master could be pieced together by considering other billing
entries or other information pertaining to the case. See Pet’r’s Br. at 31–33. But
again, this would impose upon the Special Master the “green-eyeshade accountant”
role from which he has been spared by the Supreme Court. See Fox, 563 U.S. at
838.
The Court finds that the Special Master did not abuse his discretion in
making percentage reductions to the hours billed by two of Mrs. Abbott’s attorneys.
He sufficiently explained that these reductions were the result of his line-by-line
analysis of the billing records, and were based on records he found to be vague.
Even if petitioner’s attorneys had been compensated based on similar records in the
past, the burden falls on them to justify their fee application, and additional
information can be relayed without divulging privileged information.
III. CONCLUSION
For the foregoing reasons, petitioner’s motion for review is hereby DENIED
and the decision under review is SUSTAINED.
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IT IS SO ORDERED.
s/ Victor J. Wolski
V ICTOR J. WOLSKI
J udge
-9-